Alves v. Riverside Cnty.
Alves v. Riverside Cnty.
2021 WL 3598728 (C.D. Cal. 2021)
April 9, 2021
Kewalramani, Shashi H., United States Magistrate Judge
Summary
The court denied Defendants' Application for a Protective Order Against Apex Depositions of Sheriff-Coroner Chad Bianco. The court found that Sheriff Bianco has unique, first-hand knowledge of the facts of the case and that Plaintiff has exhausted all lesser intrusive discovery methods. As such, the court ordered Defendants to produce Sheriff Bianco for deposition in accordance with the Court's instructions. No ESI was discussed in this case.
Additional Decisions
Tracy Alves
v.
Riverside County, et al
v.
Riverside County, et al
Case No. 5:19-cv-02083-JGB-SHK
United States District Court, C.D. California
Filed April 09, 2021
Counsel
John C. Burton, Matthew Sahak, Law Offices of John Burton, Pasadena, CA, Thomas Kennedy Helm, IV, Helm Law Office PC, Oakland, CA, Dale K. Galipo, Hang Dieu Le, Law Offices of Dale Galipo, Woodland Hills, CA, for Tracy Alves.Anthony M. Sain, Garros Chan, Eugene P. Ramirez, Kevin H. Louth, Manning and Kass Ellrod Ramirez Trester LLP, Los Angeles, CA, for Riverside County, et al.
Kewalramani, Shashi H., United States Magistrate Judge
Proceedings (IN CHAMBERS): ORDER DENYING DEFENDANTS' EX PARTE APPLICATION FOR A PROTECTIVE ORDER [ECF NO. 43]
*1 On February 10, 2021, Defendants County of Riverside (“Riverside County”), Sheriff-Coroner Chad Bianco (“Sheriff Bianco”), Deputy Sonia Gomez, and Deputy Brian Keeney (collectively, “Defendants”) filed the instant Ex Parte Application For A Protective Order Against Apex Depositions of Sheriff-Coroner Chad Bianco (“Application” or “App.”). Electronic Case Filing Number (“ECF No.”) 43, App. On February 17, 2021, Plaintiff Tracy Alves (“Plaintiff”) filed an Opposition to the Application (“Opposition” or “Opp'n”). ECF No. 48, Opp'n. Defendants filed their Reply on February 19, 2021. ECF No. 49, Reply.
After reviewing the parties' arguments from their briefing and attachments, for the reasons set forth below, the Court DENIES Defendants' Application. Defendants are to produce Sheriff Bianco for deposition in accordance with the Court's instructions set forth in Section III.
I. BACKGROUND
A. Procedural History
This litigation arose from the death of Kevin Robert Niedzialek (“Decedent”) during the course of his arrest on July 29, 2019 by Defendants Gomez and Keeney. ECF No. 34, First Amended Complaint (“FAC”) at 3-6. Plaintiff is Decedent's sole surviving sibling and heir. Id. at 2. On July 17, 2020, Plaintiff filed her FAC against Defendants alleging four causes of action: (1) unconstitutional policies, practices, and usages in violation of the Fourth Amendment to the U.S. Constitution; (2) acts, omissions, customs, and policies that violated California Civil Code § 52.1, known as the Bane Act; (3) assault and battery; and (4) police negligence. Id. at 9-13.
Discovery in this matter is ongoing and Plaintiff has been taking depositions of Defendants' witnesses. See ECF No. 43, App. at 3; ECF No. 48, Opp'n at 5. Plaintiff has deposed several fact witnesses, including Riverside County's Chief Forensic Pathologist Mark A. Fajardo, M.D. (“Dr. Fajardo”) and Riverside County's Federal Rule of Civil Procedure (“FRCP” or “Rule”) 30(b)(6) (“30(b)(6)”) witness, Sergeant Sean Vickers. See ECF No. 48-1, Declaration of T. Kennedy Helm, IV in Support of Plaintiff's Opposition at 2.
On February 2, 2021, Plaintiff served a deposition notice on Sheriff Bianco for February 16, 2021. ECF No. 43, App. at 9. Defendants served objections to the deposition notice on February 5, 2021, asserting that the apex doctrine prohibits the deposition of Sheriff Bianco. Id. On February 8, 2021, Defendants sent a meet and confer letter to Plaintiff regarding Sheriff Bianco's deposition. Id. That same day, counsel for both parties spoke on the phone to discuss a resolution of the issue, and ultimately agreed that Plaintiff would re-notice the deposition of Sheriff Bianco for February 25, 2021 in order to permit the parties to conduct an informal discovery conference. Id. The next day, on February 9, 2021, Plaintiff served an amended notice of deposition to Sheriff Bianco for February 25, 2021. Id.
B. Parties' Arguments
In their Application, Defendants seek a protective order preventing Plaintiff from taking the deposition of Sheriff Bianco largely on the basis that Sheriff Bianco's deposition is prohibited under the apex deposition doctrine. ECF 43, App. at 8. Specifically, Defendants argue that Sheriff Bianco qualifies to be protected under the apex deposition doctrine because (1) Sheriff Bianco does not have any direct or personal knowledge of the facts of this case; (2) Plaintiff has already taken the deposition of Defendants' 30(b)(6) witness, so Sheriff Bianco's deposition would be cumulative; and (3) Plaintiff has not exhausted all lesser intrusive discovery methods, including propounding written discovery on Sheriff Bianco. Id. at 15-16.
*2 Additionally, Defendants argue that a deposition would be unduly burdensome for Sheriff Bianco because he has recently tested positive for COVID-19 and suffers from COVID-19 symptoms. Id. at 17. Finally, Defendants sought expedited review because Defendants would “suffer irreparable prejudice.” Id. at 18.
In response, Plaintiff addresses each of Defendants' arguments. First, Plaintiff argues that Sheriff Bianco has unique, first-hand knowledge as the individual who personally certified the cause, manner, and mode of Decedent's death as a homicide. ECF No. 48, Opp'n at 4-5. Moreover, Plaintiff points to Defendants' expert testimony that contradicts Sheriff Bianco's certification of homicide, and Sheriff Bianco's deposition is necessary to explore this conflict. Id. at 5. Additionally, in support of Plaintiff's Monell claim, Plaintiff also argues that Sheriff Bianco possesses relevant information on the lack of policies or training of officers to place arrestees in a recovery position immediately upon handcuffing, particularly because Defendants' 30(b)(6) witness testified that Sheriff Bianco develops and distributes training orders. Id. at 7.
Second, Plaintiff argues that she has exhausted less intrusive discovery methods, as evidenced by first deposing other witnesses, including lower-leveled employees. Id. at 5. However, these deponents could not provide adequate answers. See id. at 5 (citing to Dr. Fajardo's testimony that Sheriff Bianco was the individual personally responsible for the homicide finding in Decedent's autopsy report), 6-7 (citing to Riverside County's 30(b)(6) witness's testimony that department directives and memorandums on training come from Sheriff Bianco).
Third, Plaintiff argues that Defendants' argument of undue burden is not credible, as Sheriff Bianco's COVID-19 diagnosis was in January 2021, and Sheriff Bianco himself was quoted to state that his diagnosis was “no big deal” and he “never did develop ... symptoms[.]” Id. at 7-8. Plaintiff points out that Sheriff Bianco's deposition would be via Zoom for only 3.5 hours, and Plaintiff would be willing to continue the deposition date if Riverside County can show that Sheriff Bianco is too ill to participate. Id. at 8.
Finally, Plaintiff argues that Defendants have failed to meet the irreparable prejudice standard under Rule 26 because Defendants failed to make any factual showing that Sheriff Bianco's “work schedule, or physical location, cannot accommodate a 3.5 hour Zoom deposition on February 25, a date selected by [Sheriff Bianco's] counsel.” Id.
II. DISCUSSION
A. General Legal Standards Regarding Discovery
FRCP 26(b)(2) governs the scope of permissible discovery and provides:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
*3 Relevancy, for purposes of discovery, “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Nguyen v. Lotus by Johnny Dung Inc., No. 8:17-cv-01317-JVS-JDE, 2019 WL 3064479, at *1 (C.D. Cal. June 5, 2019) (internal citations and quotation marks omitted). “Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (internal citations and quotation marks omitted).
Because discovery must be both relevant and proportional, the right to discovery, even plainly relevant discovery, is not limitless. See FRCP 26(b)(1); Nguyen, No. 8:17-cv-01317-JVS-JDE, 2019 WL 3064479, at *1. Discovery may be denied where: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FRCP 26(b)(2)(C).
“The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). The party opposing discovery then has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, 2009 WL 1390794 at * 1 (S.D.Cal. May 14, 2009). “The party opposing discovery is ‘required to carry a heavy burden of showing’ why discovery should be denied.” Reece v. Basi, 2014 WL 2565986, at *2 (E.D. Cal. June 6, 2014), aff'd, 704 F. App'x 685 (9th Cir. 2017) (quoting Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975)).
“The district court enjoys broad discretion when resolving discovery disputes, which should be exercised by determining the relevance of discovery requests, assessing oppressiveness, and weighing these factors in deciding whether discovery should be compelled.” United States ex rel. Brown v. Celgene Corp., No. CV 10-3165 GHK (SS), 2015 WL 12731923, at *2 (C.D. Cal. July 24, 2015) (internal citations and quotation marks omitted).
B. Analysis
1. In This Case, Sheriff Bianco's Deposition Is Not Prohibited By The Apex Deposition Doctrine.
Defendants' main argument for a protective order centers around whether Sheriff Bianco is protected from being deposed because he is an apex witness. See ECF No. 43, App. at 8.
The applicable standards regarding apex depositions are set out in detail in Hunt v. Cont'l Cas. Co., No. 13-CV-05966-HSG, 2015 WL 1518067, at *1–2 (N.D. Cal. Apr. 3, 2015):
Federal Rule of Civil Procedure 26(c)(1) provides that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including by prohibiting a deposition or limiting its scope. Fed. R. Civ. P. 26(c)(1)(A) and (B). “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” In re Transpacific Passenger Air Transp. Antitrust Litig., No. C 07–05634 CRB, 2014 WL 939287, at *1 (N.D. Cal. 2014) (citing Phillips v. GMC, 307 F.3d 1206, 1210–1211 (9th Cir. 2002)). Absent extraordinary circumstances, it is rare for a court to disallow the taking of a deposition. See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“[A] strong showing is required before a party will be denied entirely the right to take a deposition.”) (internal quotations and citations omitted); In re Google Litig., No. C 08–03172 RMW, 2011 WL 4985279, at *2 (N.D. Cal. 2011) (“A party seeking to prevent a deposition carries a heavy burden to show why discovery should be denied.”); Apple Inc. v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (“[I]t is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances.”) (internal quotations and citation omitted); Powertech Technology, Inc. v. Tessara Inc., No. C 11–6121 CW, 2013 WL 3884254, at *1 (N.D. Cal. 2013) (same).
*4 “In determining whether to allow an apex deposition [i.e., the deposition of a high-level executive], courts consider (1) whether the deponent has unique first-hand, non-repetitive knowledge of facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.” Apple v. Samsung, 282 F.R.D. at 263. A district court has broad discretion to determine whether, on the totality of the record, a party seeking a protective order has met its burden of showing good cause to block an apex deposition. See Apple v. Samsung, 282 F.R.D. at 262–263 (finding that upon a party's showing of good cause, the court has discretion to limit or preclude an apex deposition, particularly where the discovery sought can be obtained from a less burdensome source); In Re Google Litig., 2011 WL 4985279 at *2 (finding that when a party seeks to pursue an apex deposition, “the court may exercise its discretion under the federal rules to limit discovery” by precluding or limiting the deposition). The party seeking to take such a deposition does not need to prove conclusively in advance that the deponent definitely has unique, non-repetitive information; instead, “where a corporate officer may have any first-hand knowledge of relevant facts, the deposition should be allowed.” Grateful Dead Productions v. Sagan, No. C 06–7727(JW) PVT, 2007 WL 2155693, at *1, n. 5 (N.D. Cal. 2007) (emphasis in original) (citing Blankenship, 519 F.2d at 429 and Anderson v. Air West, Inc., 542 F.2d 1090, 1092–93 (9th Cir. 1976)). See also Powertech, 2013 WL 3884254 at *2 (noting that the party seeking deposition “was not required to prove that [deponent] certainly has [relevant] information”). Nor has formal “exhaustion” been viewed as an absolute requirement; instead, exhaustion of other discovery methods is an important, but not dispositive, consideration for a court to take into account in deciding how to exercise its discretion. In re Transpacific, 2014 WL 939287 at *5 (noting that exhaustion of other discovery routes is an “important consideration” but not a necessary precondition to the taking of an apex deposition).
Additionally, as in Hunt, this Magistrate Judge also finds that the burden remains with the party seeking the protective order, in this case Defendants, to prevent the taking of the deposition. 2015 WL 1518067, at *1, n.1.
Here, both parties appear to agree that Sheriff Bianco is a high-level official such that his deposition would be considered an apex deposition. See ECF No. 43, App. at 15 (“[T]he apex doctrine applies directly to [P]laintiff's noticed deposition of Sheriff-Coroner Chad Bianco.”); ECF No. 48, Opp'n at 4 (“Applying these [apex deposition] principles here, Plaintiff contends that Defendants have not met their burden to establish grounds to preclude the deposition.”). Therefore, the Court must determine whether (1) Sheriff Bianco is likely to have “unique first-hand, non-repetitive knowledge of facts at issue in this case” and (2) whether Plaintiff has exhausted other less intrusive discovery methods. See Apple, 282 F.R.D. at 263.
With respect to the first prong, Defendants' main argument appears to be that Plaintiff has not provided any evidence to demonstrate that Sheriff Bianco has direct or personal knowledge of facts at issue in this case. ECF No. 43, App. at 15-16. Defendants point out that Sheriff Bianco was “never at the scene of this incident and [P]laintiff cannot provide any evidence to the contrary.” Id. at 16. In response to Plaintiff's argument that Sheriff Bianco acquired personal knowledge from approving the coroner's investigation that was done by others, Defendants argue that such a basis would “turn the apex doctrine on its head[ ]” because “[o]versight of the work of others does not create the kind of personal knowledge that permits breach of the protection against apex depositions.” Id. Defendants further assert that “[P]laintiff has already taken the deposition of the [Riverside] County's designated person most knowledgeable (“PMK”) re the [Riverside] County's policies and practices relevant in this matter.” Id.
One aspect of Plaintiff's suit is challenging the current policies of Riverside County regarding the manner in which individuals are handcuffed during an arrest. See ECF No. 34, FAC at 9-13. Defendants appear to suggest that their 30(b)(6) witness sufficiently provided all the information related to Riverside County's policies. ECF No. 43, App. at 17. This argument appears to be supported by the record.
During the 30(b)(6) deposition, the witness testifying on behalf of Riverside County, stated that Sheriff Bianco and his administration were responsible for issuing department training directives or memorandums. See ECF No. 48-4, Ex. 3 at 3 (“The questions are asked of you as a representative of your employer, which I understand to be the County of Riverside and the Riverside Sheriff's Department”); see also id. at 6 (“Department directives and memorandums come from – they're actually orders from the sheriff, and they come from Sheriff's Administration.”). Though there is some ambiguity regarding when the policies at issue were in place, and the questioning confirms that they come from the sheriff and the Sheriff's Administration, there is no indication that Plaintiff's counsel was unable to inquire from the 30(b)(6) witness on behalf of Riverside County—of which the Sheriff's Administration appears to be a part—regarding the facts related to setting and implementing the policies at issue.[1] In sum, there is nothing cited that shows that Sheriff Bianco has “unique first-hand, non-repetitive knowledge of facts at issue in the case” that could not have been, or perhaps already was, obtained from the 30(b)(6) witness Apple, 282 F.R.D. at 263
*5 With respect to the cause of the Decedent's death, however, the testimony suggests otherwise. Specifically, Defendants' witness Dr. Fajardo testified that the manner of death in Decedent's autopsy report—which, in this case was noted as a homicide—was not classified by Dr. Fajardo but rather Sheriff Bianco, as shown in the following excerpt from Dr. Fajardo's deposition:
Q Now, when you signed off on this report, it says that the manner of death is homicide; correct?
A Correct.
Q Okay. ·And is that -- I know you went over this a little bit, but I'd like to drill down. ·Is that your finding that this was a homicide?
A So, again, let me -- let me clarify. I do not classify the manner of death here in Riverside County. ·That is something that is done by the deputy coroner, and in this particular case is actually done by the sheriff himself.
Q So who -- who actually is responsible for this finding that's in your report that this was a homicide?
A The sheriff, Chad Bianco.
ECF No. 48-2, Ex. 1 at 4 (objections omitted for clarity) (emphasis added). Though Defendants attempt to characterize this testimony as meaning that Sheriff Bianco merely signed off on the deputy-coroner's work, Dr. Fajardo's answer, which does not appear to be factually contradicted or clarified, suggests that even though the deputy coroner would make the classification decision in a routine case, “in this particular case,” Sheriff Bianco did not merely adopt the deputy coroner's classification, but did so personally. Therefore, in light of Sheriff Bianco's direct involvement determining that Decedent's death was a homicide, which would appear to be an important and central aspect of this case, Sheriff Bianco does appear to have unique, first-hand knowledge that warrants questioning.
This matter is also distinguishable from cases in which the apex witness, who is a sheriff, has no connection whatsoever to the factual issues. See K.C.R. v. Cty. of Los Angeles, No. CV 13-3806 PSG(SSx), 2014 WL 3434257, at *7 (C.D. Cal. July 11, 2014) (denying the plaintiffs' motion to compel the Los Angeles County Sheriff's Department Undersheriff for deposition because the plaintiffs failed to show how the Undersheriff was even related to the events of the case, let alone had unique personal knowledge). Defendants also rely on Avalos v. Baca to preclude Sheriff Bianco's deposition, but in Avalos, the plaintiff's basis for taking the deposition of Sheriff Baca was that “Sheriff Baca presumably has ‘superior access’ to relevant information and that Sheriff Baca has not made any submission that he ‘knows nothing’ of what is sought to be gotten by his deposition.” No. CV 05-07602 DDP (SHx), 2006 WL 6220447, at *2 (C.D. Cal. Oct. 16, 2006).
With respect to the second prong, Plaintiff has also demonstrated that she cannot gather the information regarding why Sheriff Bianco classified Decedent's death to be a homicide from other less intrusive methods. As Plaintiff has pointed out, Plaintiff deposed the medical examiner who performed the Decedent's autopsy, and the medical examiner identified Sheriff Bianco as the individual with personal knowledge of specific facts. See ECF No. 48, Opp'n at 5-7 (noting that Dr. Fajardo identified Sheriff Bianco as the individual who classified Decedent's manner of death). Defendants' experts have also provided contradictory testimony to Decedent's autopsy determination of homicide. See id. at 5 (citing to Dr. Chan's testimony that “[Decedent's] death ‘was not caused or contributed to by positional, restraint or compression asphyxia as a result of the manner in which he was restrained by law enforcement officers’ ” and Dr. Graham's testimony that “[he] would have certified the manner of death as an ‘accident[ ]’ ”) (citations omitted).
*6 Moreover, formal exhaustion to seek information elsewhere is not an absolute requirement, see Hunt, 2015 WL 1518067, at *2, and Plaintiff has demonstrated that she did attempt to do so, at least with respect to the classification of Decedent's death. Defendants have also not presented any binding authority that exhaustion of written discovery must be met before an apex deposition takes place.[2]
Therefore, the Court disagrees with Defendants and will permit Sheriff Bianco's deposition because Sheriff Bianco appears to have unique, personal knowledge of the facts of the case and Plaintiff has been unsuccessful in seeking the information from other less intrusive sources. Defendants have also not explained why Plaintiff's compromise of a shorter deposition via Zoom is unacceptable.
2. Defendants Have Not Demonstrated That A Deposition Would Be Unduly Burdensome On Sheriff-Bianco.
Defendants' secondary argument for why Plaintiff should be prohibited from deposing Sheriff Bianco is that a deposition would “place[ ] an undue burden” on Sheriff Bianco as he recently tested positive for COVID-19. ECF No. 43, App. at 17. Defendants assert that Sheriff Bianco “now suffers from symptoms normally associated with COVID-19.” Id.
The Court strongly disagrees with Defendants on this issue. As noted in the news article cited by Defendants, Sheriff Bianco was tested positive on January 27, 2021, which, as of the date of this order, is over two months ago. See Christopher Damien, Riverside County Sheriff Chad Bianco, family, test positive for COVID-19, Desert Sun (Jan. 28, 2021), https://www.desertsun.com/story/news/health/2021/01/27/riverside-county-sheriff-chad-bianco-tests-po.... Moreover, in the news article, Sheriff Bianco himself was quoted in saying “Honestly, it's no big deal ... I had to cancel some meetings, but nothing other than that.” Id. Most telling, in a public Facebook post on February 2, 2021, Sheriff Bianco provided an update stating that “My quarantine is over.... I never did develop (edit/add: sick or flu-like) symptoms and my taste is back!” Chad Bianco, Facebook (Feb. 2, 2021), https://www.facebook.com/ChadBiancoForSheriff2022/. Without further evidence to the contrary, it is clear from Sheriff Bianco's public statements that he has fully recovered from COVID-19 and therefore, a shortened virtual deposition would not be unduly burdensome. Therefore, the Court agrees with Plaintiff in that Defendants have failed to demonstrate that a deposition of Sheriff Bianco would be unduly burdensome.
Accordingly, and this Court does not take this ruling lightly considering the responsibility that Sheriff Bianco has as the sheriff of an extremely large and populous county, the Court DENIES Defendants' Application, but will limit the Plaintiff's deposition to no more than 2 hours on the record by Plaintiff's counsel. Because this deposition is of Sheriff Bianco, the only limit regarding the areas that may be inquired about are those limited by the Federal Rules of Civil Procedure and the governing relevancy standards described previously in this order.
III. CONCLUSION
*7 For the reasons previously set forth, Defendants' Application is DENIED and Defendants are to produce Sheriff Bianco for a time-limited deposition of no more than 2 hours on the record by Plaintiff's counsel.
IT IS SO ORDERED.
Footnotes
Because the Court does not have the Rule 30(b)(6) deposition notice served on Riverside County, it cannot conclusively state that the previously deposed Riverside County 30(b)(6) witness was offered on the topic of Defendant Riverside County's policies regarding handcuffing arrestees. Based on the questioning, however, it does appear that Riverside County's policies regarding handcuffing was a noticed topic and there is nothing in the record to suggest otherwise.
The Court notes that, in their Reply, Defendants have cited to non-binding and unrelated cases. See, e.g., State Bd. Of Pharmacy v. Superior Ct., 78 Cal.App.3d 641 (1978) (California state court case); Kyle Eng'g Co. v. Kleppe, 600 F.2d 226 (9th Cir. 1979) (the apex deposition doctrine was not at issue); Salter v. Upjohn Co., 593 F.2d 649 (5th Cir. 1979) (an unbinding Fifth Circuit case holding that it was not erroneous for the trial judge to issue a protective order vacating the plaintiff's first notice to take the deposition of the defendant's president, noting that “the order merely required plaintiff to depose the other employees that [the defendant] indicated had more knowledge of the facts before deposing [the defendant's president].”).